R v Foulis - [2015] SASCFC 90

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v FOULIS
[2015] SASCFC 90
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kelly)
13 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - RECEIVING AND POSSESSION OF PROPERTY STOLEN OR REASONABLY SUSPECTED OF BEING STOLEN OR UNLAWFULLY OBTAINED - RECEIVING - STOLEN PROPERTY
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant pleaded guilty to the offences of aggravated firearm possession whilst unlicensed, trafficking in methylamphetamine and theft by receipt. He was subject to a two-month suspended sentence bond at the time he committed the offences. The suspended sentence was revoked. He was sentenced to a total of imprisonment of five years, with a non-parole period of three years and four months for the offending and breach of bond.
On appeal, it was argued that the sentence was manifestly excessive and the appellant was not afforded procedural fairness as a result of the trial Judge referring when sentencing to evidence of trafficking in ecstasy, which was not the subject of the charge, as well as trafficking in methylamphetamine. These remarks were in the absence of any such submissions as to trafficking in ecstasy being made by the prosecution.
Held (Gray and Sulan JJ, Kelly J agreeing):
The Judge's reference to ecstasy indicated it was a factor relied upon by him in sentencing. The appellant was not given an opportunity to address the presence of ecstasy.
The sentence imposed was not manifestly excessive in all the circumstances.
Appeal dismissed.
Controlled Substances Act 1984 (SA) s 32(3); Firearms Act 1977 (SA) s 11, s 34A; Criminal Law Consolidation Act 1935 (SA) s 134(1), referred to.
R v Kong (2013) 115 SASR 425; R v Viola [2015] SASCFC 2; R v Pollitt [2007] SASC 382, discussed.

R v FOULIS
[2015] SASCFC 90
Court of Criminal Appeal: Gray, Sulan and Kelly JJ
GRAY AND SULAN JJ.

This is an appeal against sentence.
The appellant and defendant, Terry Richard James Foulis, following his pleas of guilty, was sentenced by a Judge of the District Court in respect of the offences of trafficking in methylamphetamine,[1] aggravated possession of a loaded and concealed .22 calibre handgun about his person whilst not holding a firearms license,[2] and theft by receipt of a motor vehicle.[3] All offences were committed at a time when the defendant was subject to a two-month suspended sentence of imprisonment for driving under disqualification.
[1]    Controlled Substances Act 1984 (SA) s 32(3).
[2]    Firearms Act 1977 (SA) s 11.
[3]    Criminal Law Consolidation Act 1935 (SA) s 134(1)
When sentencing, the Judge noted that the defendant was entitled to a sentencing discount…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Foulis

Details

AGLC: R v Foulis [2015] SASCFC 90
Case: [2015] SASCFC 90
Decision Date: 13 July 2015

CaseChat Overview and Summary

In *R v Foulis*, the appellant appealed against a sentence imposed by a lower court. The appellant had pleaded guilty to aggravated firearm possession whilst unlicensed, trafficking in methylamphetamine, and theft by receipt. At the time of committing these offences, the appellant was subject to a two-month suspended sentence bond, which was subsequently revoked. The sentencing judge imposed a total term of imprisonment of five years, with a non-parole period of three years and four months, encompassing both the new offences and the breach of the suspended sentence bond.

The central legal issue before the appellate court was whether the sentence imposed was manifestly excessive. The Director of Public Prosecutions argued that the appellant was not entitled to leniency, particularly given his admission of involvement in drug trafficking, which was submitted to negate any significance of a want of procedural fairness.

The Court of Appeal, comprising Gray, Sulan, and Kelly JJ, considered the submissions. While acknowledging that the sentencing judge's reference to ecstasy might have influenced the sentence, the Court ultimately concluded that the final sentence was not manifestly excessive. The reasoning applied was that the totality of the offending and the breach of the suspended sentence bond justified the imposed term.

Consequently, the appeal against sentence was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY AND SULAN JJ

Counsel for the Director submitted that the defendant was not entitled to leniency. It was said that the defendant’s acceptance that there was a background in trafficking excluded any leniency and that as a consequence the want of procedural fairness was of no significance. Conclusion Ultimately, the question to be determined is whether the sentence was manifestly excessive. Although we are of the view that the Judge’s reference to ecstasy suggests that it was a factor in his consideration of the sentence, for the reasons earlier expressed we conclude that the final sentence was not manifestly excessive. We dismiss the appeal. KELLY J: I agree that the appeal should be dismissed for the reasons given by Gray and Sulan JJ

Ratio Decidendi

Legal Principle Established

Established by: GRAY AND SULAN JJ

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